By Eric Weld, MassLandlords, Inc.
Renting to roommates can mean many different things, depending on your specific scenario. It can be a win-win situation if your tenant needs help with rent, there’s ample space, and you, as landlord, are involved throughout the process.
But renting to roommates can also become a headache, legally and logistically, if you are not notified and if correct process is not followed.
With the expiration of eviction moratoriums and the current economic slump, cases of renters doubling up, moving in friends and/or family, taking on subletters to help with rent, or extended guest visits verging into occupancy could all soon be on the rise.
Renting to roommates scenarios
At its simplest, a roommate is a new tenant who moves into your occupied rental and shares it with your current tenant. But within that definition lie many details that can complicate the situation.
There are nearly as many roommate scenarios as there are renters – far too many individual cases to address.
Housing providers will quickly run into lines in the sand when it comes to protected classes. Although we are usually well within our rights to know and control the long-term occupants of a rented space, our hands may be tied when the nature of a new arrival directly follows from their protected class status.
For instance, in the case of a single mother winning custody, we could not deny the new minor occupant as unauthorized (unless there were a clear non-discriminatory reason, such as exceeding legal occupancy). The most we could ask for is the name and age of the minor for our records and de-leading compliance.
Every renting-to-roommate situation has its own set of specifics, and should be approached depending on those specific parameters without trespassing into discriminatory inquiries. In many situations – such as when you have a good tenant that you want to keep – you might wish to accommodate or facilitate a new roommate renter.
Renting to roommates legally
Foremost, if you are open to renting to a roommate or roommates, the new tenants must fill out an application and complete a successful screening process if they are over age 18.
You also need to decide if you will rent to your multiple tenants in a single unit on a joint and several basis, or separately by the room.
Renting jointly and severally means you will use a single rental agreement for all the renters in the unit to sign. This means they are all liable jointly for rent payment and responsibility for the entire rental. If one roommate damages the unit or fails to pay rent on time, the other roommates share the responsibility.
If you opt to rent by the room, you would use separate lease agreements, and each roommate is responsible for both their bedroom and common spaces. One note of caution: If you rent rooms separately, with locks on bedroom doors, you’ll likely need licensing as a rooming house. (Penalties for running a rooming house without licensure may differ according to municipal ordinances.)
Pros and cons of adding roommates
If the conditions are right, you may want to add roommates or co-tenants. If, for example, you have a solid tenant whom you want to retain, and the rental unit has ample room, adding a roommate may have advantages.
For one, if adding a roommate is your current tenant’s request, you will further strengthen your relationship with that tenant by accommodating the addition. It may also add stability to the rental with two rent payers instead of one, particularly if your original tenant is suffering financial hardship or otherwise struggling to pay the rent alone.
Renting to roommates might also allow you to increase the rent. In most cases, a rent increase makes sense when adding a co-tenant, because there will be increased wear and tear on the property.
On the other hand, adding roommates can have downside. The stability of the rental unit is somewhat dependent on the roommates’ good relationship. Especially in the case of romantic partners moving in, if the relationship wanes or breaks up, it can cause sudden turmoil that could affect the tenancy.
Also, if you take on roommate renters one at a time, the roommates’ move-in schedules might not align, and you could end up in an endless cycle of adding new roommates with more paperwork and rounds of screening.
Don’t forget: Renting rooms separately likely requires rooming house licensure, an annual expense dependent on the number of rooms rented and set by the municipality. And rooming houses in Boston and other cities are required to be available for inspection – twice a year in some cases – by municipal health or licensing agents.
If you do add a roommate, always terminate the existing tenancy and rental agreement, and begin anew with a fresh rental agreement.
Keeping an eye on roommates in your rentals
It’s not uncommon for tenants to invite friends, family members, or a partner to move in as a roommate to the rental unit. Ideally, these move-ins are conducted properly, with the landlord involved and informed.
But too often, landlords are not informed of occupants who have moved into their rentals. And during eviction moratoriums, legal recourse has been limited or difficult, even in cases of rental agreement violations.
As a housing provider, you should be aware of who is living or spending time on your property to the extent possible. Maintaining dialogue with all your renters can be an effective way of keeping apprised of what’s taking place on your property. Periodic inspections are another way to monitor roommate situations.
“Always know who is in the place,” advises Jo Landers, a housing provider with several rentals in Holyoke, who has dealt with her share of roommate scenarios over several years. “You need to be around, and monitor your properties.”
Another common suggestion is to install security cameras around the exterior of your rental properties and monitor the activity from afar. Security systems come with expenses and are not always affordable, though the costs of cameras paired with online monitoring apps now make them a reasonable option for many. Also, the proliferation of security companies and systems have brought prices down considerably.
How to deal with unauthorized roommates
If you find yourself providing housing to roommates you weren’t informed about, you should first approach your leased tenant to gather all the details about the new tenant. Based on the specifics, you may decide you either want to retain the new tenant, or be rid of them.
Aspects to consider in that decision include the history of your leased tenant (i.e., good tenant or bad tenant?), if you want to retain their tenancy, the suitability of the rental to accommodate another tenant, and your own willingness or not to accept a new co-tenant.
If you are open to a co-tenant, they must fill out an application and complete a successful screening process if they are over age 18, as any other tenant would.
If you are not willing to consider a new tenant, or do not want to retain your leased tenant, you can serve a Notice to Quit, begin eviction, offer cash for keys, consider another alternative to eviction, or otherwise legally attempt to have the tenant move out.
How to deal with roommates who want to leave
Renting to roommates can get complicated. Landers describes an extreme situation in which one of her renters first brought their underage daughter to live in the rental without permission, then decided to leave, and in replacement, move in their ex, the daughter’s co-parent, who had a history of evictions and inefficient income to pay the rent. To make the rent payment, the ex asked a new partner to move in, too, along with that person’s two kids. All without changing rental agreements.
Suffice to say, like all people, your renters’ lives can change suddenly, and sometimes they might want to leave amid lease terms or in the middle of the month. In many cases, knowing that they are breaking a contract, they might offer their own replacement tenant or a subletter.
Because of the potential complications, it’s vital that every time a new person moves in to your rental property, you either modify the rental agreement to allow for the new tenant, or draw up a whole new agreement and have the new tenants sign.
Perhaps as a last resort – when negotiations failed, or a new tenant is disruptive, or you don’t wish to keep your original tenant or their new roommate – an eviction might be the only option.
Guest or roommate? Define it in the rental agreement
There can be a fine legal line between guest/visitor and roommate, and the definitions are constantly being muddied and pushed to their limits by individual circumstances. At what point does a guest become a tenant?
At one level, the line is defined by language in the rental agreement. In Massachusetts, landlords have the right to restrict guests in their rentals and to decree who is allowed to live there, via the rental contract or lease. By far, the most effective way to handle unwanted roommates is to anticipate the possibilities and specify what is and is not allowed in the rental agreement or lease.
“It really helps to have strong language in your lease,” notes Landers. “I’ve rewritten my leases a few times to put a limit on guests. You have to include ‘guest’ language – a time limit for guests – in your lease.”
A typical Massachusetts rental agreement includes language that defines guest parameters. The MassLandlords fixed-term lease, for example, includes sections for residents and occupants, stating, “the following persons are to be considered members of the Resident’s household and are the only persons authorized by this Agreement to occupy the premises…” (emphasis added). The lease includes another section under “Guests: Visitors or guests staying more than 14 days in a calendar year are considered unauthorized occupants. Anyone not included on this lease…must submit a rental application for approval to reside in the unit prior to residing in the unit.”
These lease clauses will simplify any necessary legal actions if a tenant breaches the contract by moving in roommates without landlord notification. However, it doesn’t guarantee that you’ll prevail in court.
Defining levels of occupancy in the lease or rental agreement is only the first step. When that lease provision has been violated – for example by having a guest stay in the rental so frequently that they become a co-tenant – you will need documentation and evidence to prove your case in order to win in court.
What if I didn’t spell it out in the lease?
Even if your lease or rental agreement does not adequately spell out visitation and guest terms, you still have some recourse. You might just need a little more patience in this case.
If you have a tenancy at will situation with a month-to-month rental agreement, and your tenant is hosting a guest or guests beyond a reasonable frequency (say, more than half the days of the month), you can notify your tenant that you will be exercising your right to end the agreement after 30 days, the minimum period required by law for lease nonrenewal. Or, if you prefer to retain the tenant, you could use your right of nonrenewal to negotiate new guest and visitor terms in a modified month-to-month lease. You could even terminate their tenancy and offer to create a new tenancy at a higher rent if you want to consider allowing your tenant to have guests more than half the time.
If you have a long-term lease, such as one year, you may have to wait until the lease term ends to renegotiate new terms and define visitation and guest parameters.
If you must evict
An eviction process is rarely the ideal way to handle roommate move-ins. If at all possible, work with your tenant to either: 1) define a visitor as a guest and reiterate the visitation terms in the rental agreement, including a possible rent adjustment for a frequent guest; or 2) screen the new unleased tenant and have them sign a rental agreement, if you consent to a co-tenant.
If an eviction process based on an overstaying guest or unwanted roommate is the only option, be certain to compile proof of the rental agreement breach you are arguing. That might include time-stamped camera footage. It might also include eyewitness accounts from other tenants in the complex. If that is the case, you will likely need to have them testify in person. Your account of their accounts will not be permissible as evidence; even a written, notarized account may not hold up in court.
It can be difficult to win eviction judgments involving unwanted roommates or overstaying guests. If you end up before a judge with scant evidence, documentation, or testifying witnesses to prove that a guest is overstaying, it becomes your word against your tenant’s, with the burden of proof on you. If the tenant and their witnesses (their guest, and perhaps others) testify that the guest only stays occasionally, a judge might rule in their favor based on the preponderance of evidence.
Renting to roommates – conclusion
Renting to roommates is a situation most landlords face at some point. Tenants have other people in their lives, and their circumstances often change, potentially setting up new roommate scenarios.
Some landlords recommend always using month-to-month rental agreements as a way to retain flexibility in case a new roommate situation becomes untenable, or a tenant violates the contract. There is tradeoff, of course, in doing so, such as sacrificing the rental and income security that comes with a long-term lease. It’s a landlord’s individual call.
Whether you use month-to-month or long-term contracts, try to be as specific as possible in the rental agreement about roommates, visitors, and guests. If lease violations are apparent, attempt to forge an agreement with an otherwise strong tenant before starting legal action.
Finally, if you are dealing with a roommate situation and have questions regarding status and legality, consult an attorney before taking action. The specifics of the situation will likely determine the optimal legal course.